Johnson v. Tyson Foods, Inc.

Decision Date03 November 2021
Docket Number21-cv-01161-STA-jay
PartiesROBBIE JOHNSON, Plaintiff, v. TYSON FOODS, INC., et al., Defendants.
CourtU.S. District Court — Western District of Tennessee



Plaintiff Robbie Johnson has filed an emergency motion to remand this matter to the Dyer County Chancery Court from which it was removed. (ECF No. 6.) Defendant Tyson Foods, Inc. Plaintiff's employer, has responded to the motion. (ECF Nos. 12, 13.) A hearing was held on the motion on October 29 2021. After considering the briefs, the arguments of counsel at the hearing, and the relevant law, the Court finds that the motion to remand should be DENIED.


On October 19, 2021, Plaintiff filed this action in the Chancery Court for Dyer County, Tennessee, against Tyson Foods. (ECF No. 1-1.) Plaintiff is a current employee of Tyson Foods, and alleges that Tyson Foods has discriminated against her under the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101, et seq., and the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103, et seq., by requiring her to be vaccinated with the COVID-19 vaccine prior to November 1, 2021, or else go on unpaid leave without the assurance of ever reclaiming their jobs. Plaintiff also alleges a state common law claim of assault.

Defendant Tyson Foods removed the action on October 20, 2021, asserting that this Court has jurisdiction over the matter under diversity-of-citizenship jurisdiction pursuant to 28 U.S.C. §1332 and federal officer jurisdiction under 28 U.S.C. § 1442(a)(1). Defendant contends that the parties are diverse in their citizenship and that the amount in controversy, $75, 000, is met by combining Plaintiff's yearly wages with any other compensatory damages that might be awarded by the Court if Plaintiff prevails, along with an award of attorney's fees. As to federal officer jurisdiction under 28 U.S.C. § 1442(a)(1), Defendant claims that it is operating its business under the direction of a federal officer pursuant to the April 28, 2020 Executive Order signed by President Donald J. Trump and an order issued by the United States Secretary of the Agriculture.

Plaintiff contends that remand is appropriate because she seeks only declaratory relief that Tyson Foods violated the THRA, TDA, and state tort law, and injunctive relief enjoining Tyson Foods from discriminating against employees by refusing to grant religious or health accommodations to its COVID-19 vaccine mandate. In her motion to remand, Plaintiff disclaims any rights to compensatory damages, punitive damages, or attorney's fees and asserts that she has sought nothing but equitable relief in her state court complaint. Therefore, according to Plaintiff, the requisite amount in controversy has not been met. Plaintiff further contends that no federal officer has mandated a vaccine requirement for Defendant's employees which negates subject matter jurisdiction under § 1442(a)(1).

Because the Court finds that Defendants properly removed this matter under 28 U.S.C. § 1442(a)(1), there is no need to decide whether removal was also proper under 28 U.S.C. § 1332. Accordingly, the analysis below is limited to federal officer jurisdiction.


The federal officer removal statute permits a defendant to remove to federal court a state court action for an act made under color of office while the defendant was acting under an agency or officer of the United States. 28 U.S.C. § 1442(a)(1). That is, the removal statute applies to private persons “who lawfully assist” a federal officer “in the performance of his official duty.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 150-57 (2007) (quoting Davis v. South Carolina, 107 U.S. 597, 600 (1883)).[1] The statute's purpose is to protect the federal government from interference with its “operations.” Watson, 551 U.S. at 150. “The party seeking removal bears the burden of establishing federal jurisdiction” although [t]he presumption against removal in ordinary diversity jurisdiction cases does not extend to the federal officer removal statute.” Betzner v. Boeing Co., 910 F.3d 1010, 1014 (7th Cir. 2018) (citations omitted). Moreover, courts must liberally construe § 1442(a). Id. (citations omitted); see also Doe v. ProMedica Health System, Inc., 2020 WL 7705713, at *2 (N.D. Ohio Dec. 14, 2020) (explaining that § 1442(a)(1) is “intentionally broad” and “leave[s] room for discretion to district courts applying it to different factual settings”).[2] “Jurisdictional allegations control unless it is legally impossible for them to be true.” Betzmer, 910 F.3d at 1014 (citations omitted). Thus, “a colorable federal defense under § 1442(a) need only be plausible.” Id.

Federal officer removal is appropriate when “the defendant (1) is a person within the meaning of the statute, (2) is acting under the United States, its agencies, or its officers, (3) is acting under color of federal authority, and (4) has a colorable federal defense.” Id. At 1015.

“Acting under” a federal officer requires a private party to “lawfully assist” a federal officer “in the performance of his official duty, ” Davis, 107 U.S. at 600, while the private party is “authorized to act with or for [the federal officer] in affirmatively executing duties under . . . federal law.” City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966). “The crux of the inquiry . . . is whether there was a special relationship between the defendant and the federal government, ” Baker v. Atl. Richfield Co., 962 F.3d 937, 941 (7th Cir. 2020), “distinct from the usual regulator/regulated relationship.” Watson, 551 U.S. at 157.

Defendant argues that it acted under a federal officer pursuant to President Trump's April 28, 2020 Executive Order which expressly invoked the President's authority under the Defense Production Act of 1950 (“DPA”), as amended, 50 U.S.C. § 4501 et seq. The Executive Order directed meat and poultry processing companies, such as Tyson Foods, to stay open and continue operations, subject to the supervision of the Secretary of Agriculture. See Food Supply Chain Resources, 85 Fed. Reg. at 26, 313, 2020 WL 2060381, at *1. Defendant reasons that, because it is operating under the DPA and supervision from the Secretary of Agriculture, removal under 28 U.S.C. § 1442(a)(1) is warranted. Defendant specifically contends that removal is proper because it is a “person” within the meaning of the statute who “acted under the direction of a federal officer” and its actions were for or related to acts performed under color of federal office. See Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010) (stating that a defendant seeking removal under § 1442(a)(1) must establish that it is a “person” who “acted under” a federal officer). Defendant also contends that it has colorable federal defenses to Plaintiff's claims.

In her motion, Plaintiff relies, in part, on Fernandez v. Tyson Foods, Inc., 509 F.Supp.3d 1064, (N.D. Iowa 2020), and Glenn v. Tyson Foods, Inc., 2021 WL 3614441 (E.D. Tex. Aug. 12, 2021), which granted motions to remand when jurisdiction was predicated on the federal officer removal statute, while Defendant relies on Fields v. Brown, 519 F.Supp.3d 388 (E.D. Tex. Feb. 11, 2021), and Wazelle v. Tyson Foods, Inc., 2021 WL 2637335 (N.D. Tex. June 25, 2021), which reached a contrary result. The Court finds Fields and Wazelle to be persuasive.

Whether Defendant Tyson Foods Is a “Person” within the Meaning of § 1442(a) Who Acted Under a Federal Officer

As explained by the Walton Court,

The relevant relationship is that of a private person “acting under” a federal “officer” or “agency.” 28 U.S.C. § 1442(a)(1). In this context, the word “under” must refer to what has been described as a relationship that involves “acting in a certain capacity, considered in relation to one holding a superior position or office.” 18 Oxford English Dictionary 948 (2d ed.1989). That relationship typically involves “subjection, guidance, or control.” Websters New International Dictionary 2765 (2d ed.1953). See also Funk & Wagnalls New Standard Dictionary of the English Language 2604 (1942) (defining “under” as meaning [s]ubordinate or subservient to, ” [s]ubject to guidance tutorship, or direction of”); 18 Oxford English Dictionary, supra, at 949 ([s]ubject to the instruction, direction, or guidance of”). In addition, precedent and statutory purpose make clear that the private person's “acting under” must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.

Watson, 551 U.S. at 151-152.

Defendant points to the following in support of its argument that it is a “person” within the meaning of § 1442(a) who acted under a federal officer. President Trump's April 28, 2020 Executive Order specifically cited closure of some large food processing facilities (such as Tyson Foods) and directed the Secretary of Agriculture “to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the Centers for Disease Control and Prevention (CDC) of the Department of Health and Human Services and the Occupational Safety and Health Administration (OSHA).” (Not. of Rem. at ¶ 22, ECF No. 1; Executive Order at *1.) The President directed meat processing facilities to remain in operation, stating that [i]t is important that processors of beef, pork, and poultry . . . in the food supply chain continue operating and fulfilling orders to ensure a continued supply of protein for Americans.” (Id.)

That same day the Secretary of Agriculture declared that CDC and OSHA guidance would “help ensure employee safety to reopen plants or to continue to...

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